EHRM, 18-12-2008, nr. 39948/06

The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children's life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.'s and K.S.'s registration at the health centre, that registration was pursued by the applicants upon the doctors' advice as the best opportunity for the children to get free vouchers in summer camps.

The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents' care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.

The applicants also noted that in so far as O.S.'s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.

In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children's opinion had not been taken into account during the trial.

The Government accepted that there had been interference with the applicants' right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children's interests; and was not disproportionate.

Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.

In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.

In conclusion, in the Government's opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.

The Court reiterates that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307-B). Such interference constitutes a violation of this provision unless it is ‘in accordance with the law’, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as ‘necessary in a democratic society’ (see McMichael, cited above, § 87).

In determining whether a particular interference was ‘necessary in a democratic society’, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).

The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII).

In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004-III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child's placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents' precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73–76; and Havelka and others, cited above ,§ 61).

Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05 , 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).

In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State's positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76–77 and K. and T. v. Finland [GC], cited above, § 179).

It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants' rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was ‘necessary in a democratic society’.

In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.

The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children's life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.

In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children's living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children's removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants' dwelling. No other corroborating evidence, such as the children's own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children's inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.

Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children's upbringing were attributable to the applicants' irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court's role to determine whether the promotion of family unity in the case entitled the applicants' family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.

As regards the extent to which the inadequacies in the children's upbringing may have been prompted by the applicants' purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts' reasoning, no analysis was made of the applicants' attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby's mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.

The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.

Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants' children were relevant, they were not sufficient to justify such a serious interference with the applicants' family life.

Therefore, there has been a violation of Article 8 of the Convention.